Elder
3. Capacity of Elders
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 22 Jul 2015
- Capacity refers to the ability of a person to do a particular thing. In this topic we are generally referring to legal capacity. That means whether or not a person has the capacity to manage their legal affairs. Mental illness, physical ailment, injury or disease can impact a person’s capacity.
- Dementia is the most common type of disability suffered by older Australians. Dementia is an umbrella term used to group illnesses that cause a progressive decline in a person’s functioning including memory, intellectual incapacity, social skills and motor functioning.
- In Australia 1 in 15 people aged 65 and over and 1 in 4 people aged 85 and over have dementia. Recent statistics indicate that there are more than 332,000 Australians living with dementia. This number is expected to be increased to 900,000 by 2050. Between 50% and 70% of this dementia is caused by Alzheimer’s disease.
- Because of the prevalence of dementia among Australia's aging population the issue of capacity sits at the forefront of managing your legal affairs as you grow older.
- The term ‘capacity’ does not have uniform legal meaning in NSW. What capacity means in any particular situation may vary depending on the subject matter of the case. For example a person may have the capacity to do one thing but not another. A person will generally not be found to have no capacity at all.
- There are different types of capacity referred to under the NSW law. These include:
- capacity to give instructions to a solicitor;
- capacity to manage your own affairs;
- testamentary capacity or the capacity to make a will;
- capacity to make a power of attorney; and
- capacity to consent to medical treatment.
- There are several principles which are relevant to determining whether a person has capacity to undertake a certain task. Generally speaking a person must:
- understand the facts involved in the decision making process;
- understand the consequences of their actions and how a decision may affect them; and
- be able to communicate their decision clearly.
View more Information on Personal Law